An Introduction to Documents of Freedom

In 1781, after the Americans won the Battle of Yorktown, the British General Charles Cornwallis surrendered, effectively ending the Revolutionary War. Tradition has it that, as Cornwallis was surrendering, the British military band played an old song called “The World Turned Upside Down.”

The world has turned upside down in many ways since then. The old social order—kings on top, others of royal blood one rung down, nobles in various hereditary ranks below them, the bishops of the state church often vying with the nobles, and the commoners at the bottom—once ruled the world (and not only in Europe). Today, political equality is the norm throughout the West and in most other societies as well.

Cornwallis surrender yorktown
British General Charles Cornwallis surrendered after the battle of Yorktown, effectively ending the Revolutionary War.

Technologically, the world has been transformed in ways that the people of 1781 could never have imagined. Geopolitically, the small, fledgling American republic—population under 4 million as of 1781, the same as the city of Los Angeles today—has become the world’s only superpower. Economically, some countries that were once among the poorest of the poor (think Korea or Taiwan) have become among the richest.

And in all this radical change, the nation that won its independence at Yorktown has played a pivotal role. America was the first large-scale modern experiment with a republic in which everyone was a commoner. America was the engine of the Second Industrial Revolution of the late 1800s and of the continuing technological development since then, a place of remarkable invention and industry.

American stability, economic liberty, and attractiveness to immigrants helped fuel this technological transformation, as it also helped build America’s military might. And ideas of economic liberty, largely exported from America, have helped transform the nations that have embraced them.

Whatever your views are of America’s role in the world, or of American government at home, this experience ought to leave you with a question: Why is it that America has had such influence over the past centuries? You need not be an American patriot to ask this question: Historians with no emotional ties to ancient Rome ask the same question about Rome’s influence 2000 years ago. The question about America is similar, but it’s also timelier and more practically important.

The premise of these materials is that part of the answer comes into looking at the foundations—the foundations of the American political system, legal system, and economic system.

Something about the Constitution, for all its flaws (both its famous flaws and its less well-known ones), has made it one of the longest-lasting Constitutions in the modern world. Something about the Constitution, and the economic system and political culture that the Constitution helped maintain and build, has helped make the United States one of the most stable and prosperous countries in the world.

Something about all these things has helped America ride the wave of change that has swept the world in the last two centuries—and often to drive that wave—rather than being capsized, or swept into irrelevance and decline. This should make the American legal and political system deeply interesting to all; how much more so it should be to us as Americans.

These materials aim to help with the study of this system, and in the process they will often turn to the views of the Framers, both of the Constitution and of later amendments. The Framers were not saints; they were people of their time, with many (though not all) of the prejudices common in their time. And they made practical mistakes as well. For instance, their system for electing the president led to a political constitutional crisis a mere 11 years after the Constitution was ratified, and had to be corrected by a constitutional amendment (the Twelfth) a few years later.

Nonetheless, they were unusually farsighted and successful political thinkers. And, as importantly, their thinking helped create our governmental system. Whether or not you like all features of that system, to understand the system you have to understand its history, and especially the purposes and attitudes of its creators.

In these materials, you will see some recurring themes. First, as we mentioned, we will pay close attention to the views of the Founders—though not only to the views of the Founders.

Chapter 6 readingcontent justice 1
Government can help protect our individual rights—rights to life, to liberty, to property—whether against criminals, against foreign invaders, or even against government officials themselves.

Second, we will consider the possible purposes of government. Government can help protect our individual rights—rights to life, to liberty, to property—whether against criminals, against foreign invaders, or even against government officials themselves. Government can also spend tax money (property taken from each of us) to promote economic development, thus theoretically helping to create wealth and not just protect it. Government can also tax and regulate in order to yield more equal results, rather than just protecting rights to equal opportunity. At different times in our nation’s history, the government’s role has been seen as different, and at many times that role was hotly contested. We as Americans always have the opportunity to alter our government’s role.

Third, we will often ask: How can the government have the “energy” (Alexander Hamilton’s term) needed to accomplish its purposes, without becoming too mighty and thus oppressive? The Founders were obsessed with this, and rightly so. They deliberately chose to replace the too weak government under the Articles of Confederation with a considerably more muscular one under the Constitution. Nonetheless, much of the governmental structure that they created was aimed at checking the undue “encroachment” of government power.

We see this, of course, in the “separation of powers” at the federal level, with Congress, the president, and the judiciary each having their own powers, arranged to secure their own independence, and checking and balancing each other. But there are other separations of powers built in to the system as well.

Government power was generally split among the federal government and the states, with each checking the other. Indeed, the states were originally understood as the more powerful and important governmental units. Legislative power was split within Congress between the House and the Senate, with each checking the other, and with the concurrence of each chamber being required for a law to be enacted.

The Free Speech Clause, Free Press Clause, Assembly Clause, and Petition Clause of the First Amendment helped the citizens be a check on the government. The continued preservation of private property helped create alternate seats of power, with governmental power being only one; beyond that, citizens who have their own property and don’t need to rely on government employment or government benefits can be more effective checks on the government. Indeed, a thriving system of private enterprise protects liberty by giving ambitious citizens the options of fulfilling their ambitions in the marketplace, rather than in politics. Invasion of property rights, the Founders believed, had historically been a signal of looming invasion of other liberties. Even the Establishment Clause and Free Exercise Clause helped check government power, by preserving a source of moral authority and leadership—the many religious denominations within the United States—as a counterweight to the ideological influence of government and of majorities.

Fourth, we will often talk not about what should be the right result in any particular controversy (should there be government-funded health care? should same-sex marriage be allowed?), but rather about who should decide the matter. Should the decision be made by administrative officials, selected based on their supposed expertise, or by directly politically accountable lawmakers? Should it be made by the federal government or by state governments? Should it be made by Supreme Court justices or by legislators?

Fifth, we will sometimes turn to something that is outside the political system, but that the Founders recognized as foundational to a successful political system: what the Founders called the “virtue” of the people—their courage, their tolerance, their commitment to justice, their willingness to sacrifice and compromise for the common good, and their willingness to invest the time and energy into educating themselves about the pressing issues of the time. Without voters that have such virtue, there is no reason to think that the legislators elected by the voters will be honest, responsible, intelligent, and respectful of our rights.

Jefferson option 1  1
“If a nation expects to be ignorant and free, it expects whatever was and never will be.” It is our duty as citizens of a democracy to become informed citizens. And understanding the foundations of our legal and political system is a necessary step in that process." - Thomas Jefferson

And one of these virtues—a willingness to take the time and effort to educate yourself on the matters that you will, as a voter, have to evaluate—is the very thing that this class is aimed at cultivating.

“If a nation expects to be ignorant and free,” Thomas Jefferson wrote, “it expects whatever was and never will be.” It is our duty as citizens of a democracy to become informed citizens. And understanding the foundations of our legal and political system is a necessary step in that process.” (Thomas Jefferson to Charles Yancey, January 6, 1816)

Explore Readings

Law of Demand
As prices decrease, the quantity demanded increases or as prices increase, the quantity demanded decreases.
Natural rights
Rights which belong to us by nature and can only be justly taken away through due process.
Inalienable rights
Rights which belong to us by nature and can only be justly taken away through due process.
Except where authorized by people through the Constitution, government does not have the authority to limit freedom.
Popular sovereignty
The power of government flows from the people.
Separation of powers
A system of distinct powers built into the constitution, to prevent an accumulation of power in one branch.
Checks and balances
Powers distributed among the branches of government allowing each to limit the application of power of the other branches and to prevent expansion of power of any branch.
The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.
Fairness or reasonableness in the way people are treated or decisions are made.
private property
The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.
limited government
Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.
representative government
(or republican government) Form of government in which the people are sovereign (ultimate source of power) and authorize representatives to make and carry out laws.
republican government
(or representative government)Form of government in which the people are sovereign (ultimate source of power) and authorize representatives to make and carry out laws.
civil discourse
Reasoned and respectful sharing of ideas between individuals is the primary way people influence change in society/government, and is essential to maintain self-government.
The fundamental principles by which a state or nation is governed. The United States Constitution, written in 1787, lays out the roles and powers of each of the three branches of government (legislative, executive, and judicial), the protections of due process and rule of law in the states, a republican form of government, and the manner in which to amend the document.
Thomas Jefferson
Jefferson was a Virginia plantation owner who was the principle author of the Declaration of Independence. Jefferson served as a legislator and governor in Virginia, as well as an ambassador to France, Secretary of State under George Washington, Vice President under John Adams, and the third President of the United States. During his political career, Jefferson founded the Democratic-Republican Party with James Madison, and he bought the Louisiana Purchase from France. After his presidency, Jefferson started the University of Virginia near his home, Monticello.
Bill of Rights
The first ten amendments to the Constitution, ratified in 1791, which limit government power and protect individual liberties, including the freedoms of speech, press, religion, petition, and assembly, as well as protections against cruel and unusual punishment, unreasonable search and seizure, and other due process rights.
Second Amendment
Ratified in 1791, it protects citizens’ rights to create a militia and to bear arms. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Due Process
The government must interact with all persons according to the duly-enacted laws; applying these rules equally among all persons.
Every individual is equal to every other person with respect to natural rights and treatment before the law.
Consent of the governed
The authority of the government must come from the people through elections and through the people’s interaction with government.
Individual responsibility
Individuals must take care of themselves and their families, and be vigilant to preserve their liberty and the liberty of others.
Rule of law
Government officials and citizens all abide by the same laws regardless of political power.
Declaration of Independence
The document written in 1776 by the Founders to send to Britain’s King George III in which independence from Britain was declared and the reasons for the separation were explained.
Articles of Confederation
The first national government document developed in 1781 by the Founders. The Articles created a federal legislative branch, but there was no executive or judiciary. The states retained most of the governmental powers.
The group of people who wrote and influenced the Declaration of Independence, the Articles of Confederation, the United States Constitution, and the United States Bill of Rights. These men were instrumental in establishing the nation and its governmental documents and practices.
Federalist Papers
A series of 85 essays written to convince the people of New York to ratify the Constitution. The authors were James Madison, Alexander Hamilton, and John Jay. These documents are considered to be the most authoritative explanation of the political theory of the Constitution.
First Amendment
Ratified in 1791, it protects the freedom of speech, the freedom of religion, freedom of the press, freedom to assemble, and freedom to petition the government. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Law of Supply
As the price drops, the quantity supplied also drops.
Fourth Amendment
Ratified in 1791, it protects citizens’ rights against unreasonable searches and seizures of property and explains that warrants must be issued with probable cause. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fifth Amendment
Ratified in 1791, it protects the right indictment by a jury, against double jeopardy, self-incrimination, loss of life, liberty, or property without due process, and just compensation for private property taken for public use. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Tenth Amendment
Ratified in 1791, it states that the powers not enumerated or delegated in the Constitution are reserved for the states and the people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Eighth Amendment
Ratified in 1791, it protects against excessive bail and fines and cruel and unusual punishments. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Ninth Amendment
Ratified in 1791, the listing of certain rights protected by the Constitution cannot be used to deny rights not enumerated in the document. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Alexander Hamilton
One of the Founding Fathers of the United States, Alexander Hamilton served as General Washington’s chief of staff, promoted the ratification of the Constitution in the Federalist Papers, and founded the nation’s financial system and first political party.
James Madison
Madison was a Framer who was instrumental in writing the Constitution and Bill of Rights. He is known as the “Father of the Constitution.” Madison partnered with Alexander Hamilton and John Jay to write the Federalist Papers in support of the ratification of the Constitution. He also served as a member of the Virginia House of Delegates, the United States House of Representatives, Secretary of State under Thomas Jefferson, and the fourth president of the United States.
George Washington
First President of the United States, George Washington served as commander-in-chief of the Continental Army during the American Revolution and was one of the Founding Fathers of the United States.
John Locke
An English philosopher and physician, John Locke was one of the most influential Enlightenment thinkers and is known today as the Father of Classical Liberalism.
Continental Congress
The Continental Congress, comprised of delegates from 12 of the 13 American colonies, represented the colonists during and after the American Revolution. The Continental Congress issued the Declaration of Independence and ratified the Articles of Confederation.
King George III
King George III was the King of Great Britain at the time of the American Revolution. His actions towards the American colonies, outlined in the Declaration of Independence, spurred the American Revolution.
Great Depression
Spanning ten years from 1929 to 1939, the Great Depression was one of the longest-lasting economic downturns in the history of the United States affecting the U.S. and most of the world.
An introductory statement, preface, or introduction.
Cruel and unfair treatment by people with power over others.
Using power over people in a way that is cruel and unfair.
John Adams
Before becoming the second President of the United States, John Adams served as the country’s first Vice President under George Washington. Adams was an advocate of American independence from Britain and a Federalist.
John Jay
Founding Father John Jay was one of the signers of the Treaty of Paris and served as the first Chief Justice of the United States. He was also one of the authors of the Federalist Papers.
Third Amendment
Ratified in 1791, it protects citizens against the quartering of soldiers in private homes without their approval. “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
Sixth Amendment
Ratified in 1791, it protects the rights of impartial jury trials, the right to be informed of the accusations against you, the right to be confronted by witness, and the right to be assisted by counsel. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Seventh Amendment
Ratified in 1791, it protects the right of jury trials in law suits dealing with more than twenty dollars and protects against reexamination of the trial in any court if decided by a jury. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”
Alexis de Tocqueville
French political thinker and historian, Alexis de Tocqueville is best known for his works Democracy in America and The Old Regime and the Revolution. He visited the U.S. in the 1830s and wrote admiringly about many aspects of American law and society.
Democracy in America
Written by Alexis de Tocqueville after visiting the United States, Democracy in America contains de Tocqueville’s analysis of and reflections on the United States’ democratic system and society. The first volume was published in 1835 and the second in 1840.
Magna Carta
Written in 1215, it is the oldest document in the British and American heritage of rights. Contributed to the adoption of the First, Third, Fourth, Fifth, Sixth, and Eighth Amendments of the Bill of Rights, and speaks of these rights as ancient.
Two Treatises of Civil Government
Written by John Locke in 1690, the Two Treatises of Civil Government criticize absolute power for kings and outline Locke’s suggestions for a more civilized society based on natural rights and the social contract.
Thirteenth Amendment
The Thirteenth Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.”
The group of people who actually attended the Constitutional Convention and participated in writing the Constitution.
Fourteenth Amendment
Ratified in 1868, it states that all people born or naturalized in the United States are citizens and ensures that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Sixteenth Amendment
Ratified in 1913, the Sixteenth Amendment gave Congress the ability to collect income taxes. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.”
Eighteenth Amendment
atified in 1919, the Eighteenth Amendment introduced Prohibition, the period of United States history when the manufacture, sale, and transportation of alcohol was made illegal throughout the country. “Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”
Twentieth Amendment
The Twentieth Amendment was ratified in 1933, and it establishes procedures for presidential succession and the start and end of federal officials’ terms of office. “Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Twenty-First Amendment
In 1933, the Twenty-First Amendment repealed the Eighteenth Amendment, ending Prohibition. “Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”
English Bill of Rights
Passed by the British Parliament in 1689, the English Bill of Rights limited the power of the British monarch, outlined the rights of the Parliament, and guaranteed Protestants the right to bear arms.
The legislative body of the United Kingdom (known as Great Britain or England during the Founding era).
Benjamin Franklin
One of the Founding Fathers of the United States, Benjamin Franklin was a statesman, author, publisher, scientist, inventor and diplomat. He served in the Second Continental Congress during the American Revolution and helped draft the Declaration of Independence. In addition, Franklin helped negotiated the Treaty of Paris which ended the Revolutionary War and later served as a delegate to the convention that produced the U.S. Constitution.
The right to vote.
A government in which the power belongs to citizens through the right to vote.
Fifteenth Amendment
Ratified in 1870, it states that the right could not be restricted based on “race, color, or previous condition of servitude.” “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.”
Seventeenth Amendment
Ratified in 1913, the Seventeenth Amendment introduced direct election of Senators. “The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”
Nineteenth Amendment
Ratified in 1920, the amendment stated that a citizen’s right to vote must not be restricted based on gender. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.”
Direct Democracy
Direct democracy is a political system in which the people vote directly on policies or laws, as opposed to voting for representatives who enact laws on their behalf.
Not planned or chosen for a particular reason; done without concern for what is fair or right.
Judicial Review
The process by which courts analyze the constitutionality of an act of government.
Majority rule/minority rights
laws may be made with the consent of the majority, but only to the point where they do not infringe on the inalienable rights of the minority.
An arbitrary order or decree.
Something that is owned by a person, business, etc. This includes possessions, beliefs, faculties, and opinions, and the fruits of one's labor.
A government in which the power is held by the people.
Electoral College
A body of electors chosen by each state to vote for the president and vice president of the United States.
Conduct that reflects universal principles of moral and ethical excellence essential to leading a worthwhile life and to effective self-government. For many leading Founders, attributes of character such as justice, responsibility, perseverance, etc., were thought to flow from an understanding of the rights and obligations of men. Virtue is compatible with, but does not require, religious belief.